Two recent decisions of the EAT have grappled with the situation where the treatment complained of comprised both the fact that the complainant was married and the identity of her husband – that is, where the treatment is not because she is married but because of who she is married to .
Does it have to be established that an effective cause of the treatment was marriage specific for liability to arise? Or is it sufficient to establish that the treatment was because of the complaint's connection to a particular person and the connection arises from a relationship of marriage?
This subtle distinction can be illustrated by the following shifts in emphases:
Did the complainant suffer the treatment in question because she was married to a particular man, or because she was married to that man.
In Dunn v Institute of Cemetery & Crematorium Management, in which Daniel Northall acted for the employer, instructed by DAC Beachcroft LLP, the EAT (HHJ McMullen QC presiding) adopted a broader interpretation. It rejected the employer's submissions that the treatment must by marriage specific and found that it was sufficient for liability to arise that the complainant was married to a particular man, even if the identity of the husband, as opposed to the mere fact of marriage, was the effective cause of the treatment. The case was remitted back to the Employment Tribunal and is currently awaiting redetermination.
The decision in Dunn gave rise to concern as to the potentially wide protection which s.3 SDA might now afford.
However, in Hawkins v Atex Group Ltd a further division of the EAT (Underhill J presiding) has now reached the opposite conclusion, finding that the treatment complained of must be marriage specific for liability to arise. In such circumstances it is legitimate to draw a comparison between the treatment actually afforded to the complaint because of her husband and a hypothetical situation in which the same protagonists enjoy a close connection through, for example, cohabitation, but are not married. If the treatment of the complainant would be the same in both situations, it is unlikely that marriage of itself was an influential factor. The EAT cast doubt on aspects of the reasoning in Dunn.
In the absence of a further appeal, Tribunals must now decide which of the two judgments it prefers.
Although both decisions concerned Section 3 of the Sex Discrimination Act 1975 they are likely to have continuing relevance under the Equality Act 2010 which also lists marriage as a protected characteristic.